-Module 4-
planning, types & ESTABLISHMENT
EXERCISE 1
Matching De Facto Realities to Legal Incorporation Tools
OBJECTIVES AND INSTRUCTIONS
Nature of the Exercise
o Large Group Exercise
o Practical Legal Scenario
o Legal Problem Solving
o Group Presentations
Purpose of the Exercise
o Provide Learners with an opportunity to reflect on their knowledge of the law in a practical context.
o Increase Learners’ ability to identify:
§ Relevant stakeholders in the context of establishing a PA.
§ Different ownership and land-use realities impacting on the establishment of a PA.
§ Core issues that should be scoped in the process leading to the establishment of a PA and the role/influence of PA law on these issues.
o Increase knowledge of the different legal tools that could be used to incorporate different parcels of land within PAs.
Structure of the Exercise
o Introduction to Exercise (10 minutes)
o Small Group Work (50 minutes)
o Group Presentations (60 minutes)
Methodology/Procedure
o Divided Learners into four groups.
o Hand out a copy of the following documents to the Learners:
§ Case Study Narrative and Questions (Annex A) - one for each Learner.
§ Map of the Case Study Area (Annex B) - one for each Learner.
§ Several sheets of A0 paper.
o Introduction to the Exercise - facilitated by the pre-prepared Presentation (10 minutes)
§ Explain the nature and purpose of the Exercise.
§ Briefly introduce the Case Study.
§ Introduce the Task
· Read carefully through the Case Study again as a Group.
· Drawing from the knowledge conveyed to the Learners in the Seminar Presentation, each group must discuss the following four questions:
- What core domestic issues should be scoped in the pre-establishment process that could influence the form, nature and process leading to the establishment of the PA? What is the impact/role of PA law on these issues? Discuss these generically and not in the context of the case study.
- What different parcels of land are to be included in the PA and what are the distinct ownership/land use arrangements characterising each?
- Who are relevant stakeholders that should be consulted over the establishment of the PA and why?
- What legal tools could be used to incorporate the different parcels of land into the PA detailing:
o Which would be most useful/relevant to which parcel of land?
o Why would it be most useful/relevant?
· Each group should capture their answers on the sheets of A0 paper handed to them (one sheet for each of the above four issues).
· Encourage the groups to be creative in the presentation of their answers using tables, mind-maps etc.
· Each group will be given 15 minutes to present the outcomes of their discussion to the class and in preparation for this:
- Each group should appoint a scribe.
- Each group should appoint a spokesperson.
· Highlight to the groups that there is no one correct answer and that the purpose of the Exercise is to think practically and creatively about the Case Study and apply what the Learners have learnt about Planning for and the Establishment of Protected Areas in the Seminar Presentation.
· The Learners have 50 minutes to prepare their responses.
o Group Work (50 minutes)
§ During this time the Learners will complete the above task.
§ The Educator should rotate him/herself equitably between the groups with a view to answering queries and facilitating discussion.
o Group Presentations (4 x 15 minutes = 60 minutes)
§ The groups will then come together as a class and the spokesperson of each group will be given 15 minutes to present the outcome of their discussion on each of the aspects they were tasked with considering.
§ Provide an opportunity/space for each group to stick up their work.
§ Be sure to hold each spokesperson to their allotted time.
§ Should groups struggle/you think they may struggle to cover all aspects during their allotted time, you may:
· Task each group in advance to canvas all issues in their discussion but only present on one issue to the class.
· Ask subsequent group spokespersons to simply highlight possible additions or alternative responses/approaches to those presented by previous groups – rather than repeating them.
§ The Educator should facilitate this process and encourage feedback and additions from other groups during the presentations to ensure that the session is interactive and participatory.
· Additional Notes to the Educator
o This Exercise is based on a fictional case study with a view to ensuring that it remains universally relevant and contemporary.
o The Educator may want to substitute the fictional case study with an actual case from his/her region/jurisdiction in which case he/she would need to adapt the three Annexes accordingly.
o The Exercise is based on a complicated fictional case study with a view to ensuring that is should challenge Learners with a high level of skills/expertise.
o The Educator may want to edit/simplify the fictional case study depending on the level of capacity of the Learners in which case he/she would need to adapt the three Annexes accordingly.
RESOURCES
· Introductory Presentation
· Case Study Narrative and Questions (Annex A)
· Map of the Case Study Area (Annex B)
· Summary of Possible Responses (Annex C)
ANNEX A – CASE STUDY
THE CONTEXT
In an effort to conserve the Wanui Wetland, an important international habitat for several endangered species of waterfowl, the Government (specifically the Department of Nature) decides to establish the Wanui Wetland Park in terms of the Protected Areas Act. It anticipates that the National Parks Agency will be appointed to manage the new Wetland Park. It recognises that this will be a massive undertaking as in order to protect the Wetland, it needs to simultaneously secure several parcels of land surrounding the Wetland for inclusion within the borders of the Park. These parcels of land are currently owned, occupied and/or managed by several different entities. The establishment of the new Park will also create an essential corridor between the Mountain National Park in the North and the Wanui Wilderness Area in the South. The Government acknowledges that the Mountain National Park and Wanui Wilderness Area have already been designated as protected areas, but wishes to include and re-designate these within the borders of one Park administered by one management authority to promote improved, integrated and coordinated management.
The Wanui Wetland itself, as with all water resources in the country, falls under the trusteeship of the Minister of Water. The Wanui River feeds the wetland with its source in the Mountain National Park. The Mountain National Park comprises of state-owned land and is managed by the National Parks Agency. Situated between the Mountain National Park and the Wetland is the Wanui Catchment Management Area (CMA), formally designated by the Department of Water Affairs (in terms of the Catchment Management Act) owing to the areas importance as a catchment for Wild River and the Wanui Wetland. It similarly comprises of state-owned land and the management of the CMA falls to the Department of Water Affairs. It is a vital portion of the new proposed Park in that it will ensure the continued protected of the Wetland’s water quantity and quality. The small Wanui Community occupy the north-western corner of the Wanui CMA. They have lived in this area for centuries and have been granted special legal dispensation to remain there owing to their historic link to the land. They do not however formally hold title to the land but manage the resources in the area according to the customary laws and practices.
Having fed the wetland, the Wanui River continues to flow south through the Wanui River Wilderness Area, similarly declared as such under the Protected Areas Act. Its management however falls to Wanui Nature, the provincial conservation agency. The Wilderness Area, as its designation would suggest, is of high conservation value.
Situated to the east of the Wanui Wetland are two parcels of land. The first and smaller portion is owned by NatureCo, a private company that has established two small tourist lodges on the eastern bank of the Wetland. But for these developments, which have minimal influence on the surrounding environment, the remaining portions of the property remain in a pristine natural state. NatureCo wishes to retain its ownership of the land but is not averse to having it included within the borders of the Wanui Wetland Park, on condition that it can continue to operate the two small tourist lodges. The second and larger portion, which is owned by DevCo, is similarly in a pristine natural state. They purchased the land with the intention of developing a luxury resort on the shores of the Wanui Wetland but have run out of money. DevCo also realise that the impending declaration of the surrounding area as a Wetland Park may scupper its development plans. DevCo is therefore willing to sell the land for incorporation in the Wetland Park, but want to receive a market-related price for the land. Owing to its size and value, the Government does not unfortunately have the resources to purchase DevCo’s land. There is however an NGO (the Wetland Trust) that is willing to purchase the land and enter into some relationship with the Government for ensuring its inclusion within the proposed Wetland Park. Both these two properties situated on the Eastern shore of the Wanui Wetland create an essential buffer between the Wetland and large-scale agriculture to the East.
Situated to the west of the Wanui Wetland are similarly two key parcels of land. The first, and smaller portion in the south, is owned by Farmer Zen, an aged recluse who farms for his own subsistence needs. He realises his fragility and has no objection to moving to town, as long as he receives fair compensation for his land. The Government have had the Farm valued and should be in a position to purchase it outright. The Peat Community owns the second portion of land and has for centuries managed the resources in the area according to their customary laws and practices. It is a vast tract of land that the community do not want to sell. It remains largely untouched but for the north-western corner where the Peat Community reside adjacent to the Wanui Community, their distant relations. The Peat Community makes a living extracting peat from several pits along the western shoreline of the Wanui Wetland and selling this to the Wanui Community. They also extract peat for their own energy needs owing to the absence of formal electricity supply. The Government have undertaken an assessment and concluded that these peat pits can be easily rehabilitated. The Peat Community has indicated that they would be prepared to stop their extraction of peat if: they were provided with a free formal supply of electricity and they were compensated in some manner for their loss of income. They have also indicated that they would be prepared to have their land incorporated within the borders of the proposed Park on condition that they secure some form of financial benefit (possibly a rental) for doing so. Both these two properties situated on the western shore of the Wanui Wetland create an essential buffer between the Wetland and large-scale peat mining operations to the West.
YOUR TASK
Having read through the above context carefully, prepare your responses to each of the following four questions:
(1) What core domestic issues should be scoped in the pre-establishment process that could influence the form, nature and process leading to the establishment of the PA? What is the impact/role of PA law on these issues? Discuss these issues generically and not in the context of the case study.
(2) What different parcels of land are to be included in the PA and what are the distinct ownership/land use arrangements characterising each, namely:
· Who owns/controls the land?
· What is their attitude to it being incorporated in the new Park?
· What activities are currently undertaken on the land?
· Of what importance is the land to the new Park?
(3) Who are relevant stakeholders that should be consulted over the establishment of the PA and why?
(4) What legal tool/s (ie. state purchase, state expropriation, donation, lease, conservation agreement, conservation easements/servitudes/ covenants, land trust, formal de-proclamation, proclamation, boundary amendment) could be used to incorporate the different parcels of land into the new PA detailing:
· Which would be most useful/relevant tool/s to each parcel of land?
· Why would it be most useful/relevant?
Capture your responses to each of the above four questions on the separate pieces of A0 paper that has been provided to you.
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ANNEX B – MAP FOR THE CASE STUDY AREA
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ANNEX C – SUMMARY OF POSSIBLE RESPONSES
NOTE - The following summary draws on issues contained in the Seminar Presentation and reflects on them through the facts of the Case Study. It highlights key responses to the four main questions posed to the Learners. Its purpose is two-fold - first as a resource for the Educator to stimulate discussion during the Group Presentation component of the Exercise; and secondly as a resource which can be handed to Learners on completion of the Exercise as a resource for further self-reflection.
CORE ISSUES influencing the ESTABLISHMENT process
Identified in the table below are the core domestic issues that may need to be scoped in the pre-establishment process and that could influence the form, nature and process leading to the establishment of the PA. The table also includes an indication of the impact/role of law on these issues.
TENUREISSUE
Who holds tenure? / · Many different entities can own, hold rights or exercise authority over the land/sea to be included in the PA.
· These entities can include the government, communities and individuals (including natural and juristic persons).
· These entities can own, hold rights or exercise authority individually or jointly.